• Jan
  • 18
  • 2008

Show cause notice issued after six months from the date of search and even after completion of the investigations is barred by limitation

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Commissioner of Central Excise Vs. Nandeshwari Packaging (Cestat Ahemdabad)- Show cause notice issued on 9-7-2004 is barred by limitation, inasmuch as, the same stands issued after the period of six months from the date of search and even after completion of the investigations.

IN THE CESTAT, WEST ZONAL BENCH, AHMEDABAD

[COURT NO. II]

Ms. Archana Wadhwa, Member (J)

Commissioner of Central Excise., Ahmedabad -I

Versus

Nandeshwari Packaging

Final Order No. A/125/2008-WZB/AHD, dated 17-1-2008 in Appeal No. E/2825/2006

Shri K.J. Sanchis, JDR, for the Appellant.
Shri M.A. Patel, Consultant,for the Respondent 

O   R   D   E   R

Being aggrieved with the order passed by the Commissioner (Appeals), the revenue has preferred the present appeal. After hearing both the sides, I find that the appellate authority has held that the show cause notice issued on 9-7-2004 is barred by limitation, inasmuch as, the same stands issued after the period of six months from the date of search and even after completion of the investigations. For better appreciation, the relevant para of the Commissioner (Appeals) is reproduced below:

“(vi) The Department became aware of evasion; the short levy was got realized on the same day. However, there had been un explainable, callous and fatal delay in issuing the SCN in question. The department has not made any meaningful investigation or turned out any milestone in consuming more than 4 and half years in completing the investigation. Therefore, I have no hesitation in holding that the demand notice issued by the Additional Commissioner as late as on 9-7-04 is hopelessly time barred. When the amount was already paid in full i.e., without deduction of cum duty price, perhaps there was no need for issuing SCN, for penalty etc. after lapse of so much period. When the demand itself is time barred, when the original authority, while confirming the demand had held that interest is not leviable and payable, the question of any penalty either on the firm or on the proprietor could not be held to be sustainable in the Central Excise law and procedures. Therefore, it stands set aside in full.”

2. I find that the issue is no more res integra. The Hon’ble Supreme Court in the case of C.C.E, Chandigarh-II v. Bhalla Enterprises – 2004 (173) E.L.T. 225 (S.C.) has held that the limitation for issue of show cause notice is to run from the date of search and seizure of documents or from date of completion of investigation. To the similar effect is the other decisions of the Tribunal relied upon by the learned Consultant as detailed below:

Shree Renuka Sugars Ltd. (SRSL) v. C.C.E., Bangalore – 2007 (210) E.L.T. 385 (Tri-Bang.)

Jetex Caburettors Pvt. Ltd. v. C.C.E., Vadodara – 2007 (5) S.T.R. 446 (Tri.Ahmd.)

Rivaa Textile Inds. Ltd. v. C.C.E & Cus., Surat-I – 2006 ( 197) E.L.T. 555 (Tri.- Mumbai)

3. In view of the above, I do not find any infirmity in the view adopted by the Commissioner (Appeals). Accordingly, the revenue’s appeal is rejected.

(Dictated and pronounced in the open Court)


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